Bama weighs risk-reward of an appeal

TUSCALOOSA | To appeal or not to appeal?

That is the question that lies before the leadership at the University of Alabama, including President Robert Witt and Director of Athletics Mal Moore.

And the clock is ticking.

UA officials have 15 days from the date of public release of the Committee on Infractions’ report to file a notice of appeals.

That means Alabama has until June 26 to file its intention to object to penalties that stripped the Crimson Tide football program of 21 wins from the 2005, 2006 and 2007 seasons.

The penalties stem from an internal UA investigation that showed 201 athletes in 16 different sports received impermissible supplies. Alabama self-reported the violations to the Southeastern Conference and the NCAA.

Witt and Moore addressed the penalties Thursday, expressing disappointment while reiterating that no competitive advantage was gained.

Moore gave no indication of whether UA would appeal the infractions.

“We will carefully consider our options regarding an appeal, as we feel that we owe that to our current and former student-athletes, and to our alumni and fans,” Moore said.

Mike Ermert, an attorney with the Birmingham law firm of Hare, Wynn, Newell & Newton familiar with the Infractions Appeals Committee, said there are two schools of thought surrounding a possible appeal.

“First you have to look at other textbook penalty cases and assess what the penalties were, which in some cases involved scholarship losses, and compare them to what happened in (Alabama’s) case,” Ermert said.

“The University of Alabama has to filter the sanctions with the fact that they are a repeat violator. That’s the trump card that has to be considered in this part of the case.

“On the other hand, (UA) is concerned about players that were innocent and records being affected. Just accepting the penalty would put an end to this and let Alabama focus on the future as opposed to dragging it out in an attempt to find some relief.

“I really think the primary concern will be how an appeal would affect coaches and players. The continued talk in the media when in six or seven weeks attention should turn to the competition on the field, whether UA wants that shadow hanging over them or if they just want to move on will play a role.

“Those are the factors that the University of Alabama and its attorneys will be discussing over the next several days.”

Ermert knows a thing or two about the appeals process, arguing the first successful appeal in NCAA history when he represented Alabama faculty representative Tom Jones in 1994.

Similar NCAA Cases

Compared to the penalties Ball State University received in its textbook infractions case, Alabama might be inclined to move forward instead of fighting the penalties.

The Ball State football team surrendered three scholarships after student-athletes used scholarship money to buy textbooks not needed for their classes.

In addition, Ball State was found to have a Lack of Institutional Control.

By comparison, UA lost no scholarships and was slapped with the less serious Failure to Monitor charge.

Another factor to be considered is the Infraction Appeals Committee’s recent reversals of infractions handed down by the COI.

In 2008, the University of Oklahoma successfully appealed the ruling that it must vacate wins from its 2005 football season. Oklahoma’s case involved student-athletes who were paid for summer jobs they did not do.

In its public report, the Appeals Committee agreed with Oklahoma that it should not have to vacate wins, calling the penalties “excessive.”

The Committee cited the due diligence and speed in which Oklahoma handled the situation once it became aware of the violations as reasons to restore the wins.

The Committee wrote, “...immediately on learning of the extra benefits violation and prior to the 2006 football season, the institution permanently dismissed the two involved student-athletes from the football team. This was a powerful self-imposed penalty which seriously affected the football program. The Committee on Infractions’ report did not acknowledge or discuss this action nor specify what weight, if any it was given.”

Alabama could choose to use a similar appeal strategy, citing the Oklahoma case as precedent. Alabama suspended five football players for games during the 2007 season as soon as it learned of the textbook allegations.

Georgia Tech also successfully appealed a forced vacation of wins penalty, and Florida State is currently in the appeals process.

However, Ermert warns Alabama fans not to confuse the Florida State case with UA’s.

“I think the cases are quite different,” he said. “FSU’s case deals with academic fraud, the most serious of all infractions.

“Whereas Alabama’s case involved the textbook distribution system that had a gap in it. There is a total difference in my mind in an academic fraud case and what the University of Alabama has been found guilty of.

“Ultimately Alabama will rely on its counsel to weigh the risk-reward involved and make the decision that is best for it.”

Reach Aaron Suttles at aaron.suttles@tuscaloosanews.com or at 205-722-0229.